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Rocket man - employment law in space

Last week, British astronaut Tim Peake blasted off from Kazakhstan to begin his six month mission aboard the International Space Station.

It is often said that international borders and jurisdictions can seem artificial and insignificant when viewed from space but just where would Commander Peake stand if he were dismissed while in space and tried to bring a claim of unfair dismissal in the UK employment tribunal (ET) when he returned to Earth?

Whilst ET case law concerning employment rights in space is understandably thin on the ground, the principles governing the territorial scope of UK employment law for people working outside of the UK have been extensively considered, most notably by the House of Lords in Lawson v Serco Ltd [2006] UKHL 3 and, more recently, by the Supreme Court in Ravat v Halliburton Manufacturing and Services Ltd [2012] IRLR 315.

In Lawson, the House of Lords identified three main categories of worker who could receive protection from unfair dismissal:

Employees ordinarily working in Great Britain;

Peripatetic employees – those whose job involves work in various locations; and

Expatriate employees – those permanently working abroad for a British-based employer.

Lord Hoffman's leading judgment stated that the key point in deciding where a peripatetic employee could bring an employment claim was to consider where his 'base' was at the time of his dismissal, regardless of the fact that he may have spent weeks or months at a time working in other locations. Where a person is based is a question of fact and will depend on a wide range of factors.

In Ravat, the Supreme Court considered that it was not necessary to fit an employee into one of the Lawson categories in order for him to receive protection from unfair dismissal under UK employment law and proposed a simpler question: whether the worker had a 'sufficiently strong connection with Great Britain'. This test involves a factual balancing of all the factors that suggest a strong connection with Great Britain with all of those that suggest a connection with some other jurisdiction. To benefit from UK unfair dismissal rights, the employee will need to show a much stronger connection with Great Britain and British employment law than with any other territory.

In this case, the International Space Station is owned by the five contributing space agencies, with EU law applying to the personnel, equipment and parts on-board provided by the European Space Agency (ESA). However, the 22 member states that contribute to the ESA are treated as one harmonious entity and UK law would not automatically apply to a British astronaut.

The relevant factors that an ET would need to consider include:

Where Commander Peake's headquarters are;

Where he has his home;

Which country he receives his pay in and in which currency;

Where he pays tax;

Where he was recruited; and

What his employment contract says about law and jurisdiction, although this is not conclusive in itself.

It would be up to the courts to decide which law applied, based on the facts of the case and taking into account the above factors. While it is very unlikely that an ET will have to grapple with this question, it could become more of an issue in the future if people start living – and working – on the Moon and Mars.